PRESENT: All the Justices
DAVID F. LIGON, III
v. Record No. 090250 OPINION BY
JUSTICE BARBARA MILANO KEENAN
February 25, 2010
COUNTY OF GOOCHLAND
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
Timothy K. Sanner, Judge
In this question of first impression involving the Virginia
Fraud Against Taxpayers Act (VFATA), Code §§ 8.01-216.1 through
–216.19, we consider whether the doctrine of sovereign immunity
bars a retaliatory discharge claim against a County filed under
the “whistleblower protection” provision in Code § 8.01-216.8.
David F. Ligon, III filed a complaint in the circuit court
against his former employer, Goochland County (the County),
asserting that Ligon unlawfully was terminated from his
employment in the County’s Building and Grounds Department and
that he was entitled to relief under the “whistleblower
protection” provision in Code § 8.01-216.8. 1 Ligon alleged that
he was terminated because he opposed certain fraudulent actions
of his former supervisor, Cecil H. Youngblood, or because Ligon
initiated or participated in an investigation of those
practices. As permitted by Code § 8.01-216.8, Ligon sought
1
In his complaint, Ligon also asserted a claim of
defamation against his former supervisor, Cecil H. Youngblood.
That claim is not before us in this appeal.
compensatory damages, reinstatement of his employment, twice the
amount of his “back pay,” and attorney fees and costs. 2
In his complaint, Ligon asserted that Youngblood used
County property for personal gain, that Youngblood permitted
employees he supervised to engage in personal errands during
work hours, and that he directed employees he supervised to help
complete personal projects during work hours. Ligon alleged
that he reported Youngblood’s improper actions to an
investigator in the County Sheriff’s Department and that several
weeks later, the investigator interviewed Youngblood.
Ligon alleged that before the events in question,
Youngblood previously had given Ligon a positive work
evaluation. However, according to Ligon’s complaint,
immediately after Youngblood was interviewed by the
investigator, Youngblood presented Ligon with a memorandum that
criticized Ligon’s “attitude” and was intended to “intimidate
and harass” Ligon. Ligon also asserted that the day after the
interview, Youngblood terminated Ligon’s employment, stating
that Ligon had engaged in “disruptive behavior and
insubordination.”
2
Ligon sought additional damages based on his assertion
that Youngblood acted negligently. However, as previously
explained, Youngblood was dismissed from the suit and is not a
party to this appeal.
2
The County filed a demurrer on several grounds, including
that Ligon’s retaliatory discharge claim was barred by the
doctrine of sovereign immunity. 3 After conducting a hearing, the
circuit court sustained the County’s demurrer, concluding that
the County was immune from suit. 4 The circuit court held that
the VFATA did not contain a waiver of immunity sufficient to
allow an action against the County. Ligon appealed from the
circuit court’s judgment.
On appeal, Ligon argues that the circuit court erred in
sustaining the County’s demurrer because the doctrine of
sovereign immunity, while applicable to common law tort claims,
does not affect statutory claims of retaliatory discharge under
the VFATA. Ligon asserts that the plain language of Code
§ 8.01-216.8 protects “[a]ny employee” from retaliatory
discharge, which includes employees of the Commonwealth and its
political subdivisions.
In response, the County argues that the doctrine of
sovereign immunity is applicable to all claims against the
Commonwealth and its political subdivisions, including the claim
3
In its amended demurrer, the County also argued that the
circuit court lacked jurisdiction under Code § 8.01-216.8
because the Commonwealth had knowledge of Ligon’s allegations
prior to his filing the lawsuit and because Ligon failed to
comply with Code § 15.2-1248. The circuit court did not address
these issues in its holding.
4
The circuit court also held that the doctrine of
respondeat superior does not apply to the County, but that issue
is not before us on appeal.
3
brought by Ligon, unless that immunity is expressly waived by
statute. The County contends that the VFATA does not contain an
express waiver of immunity and that, therefore, the doctrine of
sovereign immunity bars Ligon’s suit under the VFATA. We agree
with the County’s arguments. 5
The issue whether the doctrine of sovereign immunity barred
Ligon from filing a retaliatory discharge claim against the
County presents a purely legal question that we review de novo.
See Antisdel v. Ashby, 279 Va. 42, 47, ___ S.E.2d ___, ___
(2010); Gray v. Virginia Sec’y of Transp., 276 Va. 93, 97, 662
S.E.2d 66, 68 (2008); Miller v. Highland County, 274 Va. 355,
364, 650 S.E.2d 532, 535 (2007). Under the doctrine of
sovereign immunity, the Commonwealth is immune from liability
for damages and from suits to restrain governmental action or to
compel such action. Gray, 276 Va. at 102, 662 S.E.2d at 70;
Afzall v. Commonwealth, 273 Va. 226, 231, 639 S.E.2d 279, 282
(2007). Thus, the Commonwealth is immune from tort liability
for the acts or omissions of its agents and employees unless an
express statutory or constitutional provision waives that
immunity. Rector & Visitors of the Univ. of Va. v. Carter, 267
5
In this appeal, we are not asked to consider and we do not
consider whether Ligon’s claim presents a valid assertion that
Youngblood engaged in any unlawful practices as described in
Code § 8.01-216.3 or that Ligon participated in an investigation
of those practices. We consider only the sovereign immunity
holding of the circuit court.
4
Va. 242, 244, 591 S.E.2d 76, 78 (2004); Patten v. Commonwealth,
262 Va. 654, 658, 553 S.E.2d 517, 519 (2001); Melanson v.
Commonwealth, 261 Va. 178, 181, 539 S.E.2d 433, 434 (2001). The
same immunity principles apply to counties, which are political
subdivisions of the Commonwealth. See Mann v. County Board of
Arlington County, 199 Va. 169, 174, 98 S.E.2d 515, 518 (1957);
Fry v. County of Albemarle, 86 Va. 195, 197-98, 9 S.E. 1004,
1005 (1890).
The doctrine of sovereign immunity serves many purposes.
These purposes include protecting the public purse, ensuring the
uninterrupted functioning of government, eliminating any public
inconvenience and danger that may result from officials being
fearful to act, assuring that citizens will continue to accept
public employment, and discouraging individuals from improperly
threatening or initiating vexatious litigation. Gray, 276 Va.
at 101, 662 S.E.2d at 70; Afzall, 273 Va. at 231, 639 S.E.2d at
282; Messina v. Burden, 228 Va. 301, 307-08, 321 S.E.2d 657, 660
(1984).
Only the General Assembly can determine as a matter of
policy whether the Commonwealth’s sovereign immunity should be
abrogated with regard to a particular type of legal action.
Afzall, 273 Va. at 230, 639 S.E.2d at 281; Commonwealth v.
Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876 (2000). In
reviewing a statute, courts will conclude that the General
5
Assembly has taken such action abrogating the Commonwealth’s
sovereign immunity only when the statutory language has
explicitly and expressly announced such a waiver. See Gray, 276
Va. at 102, 662 S.E.2d at 71; Afzall, 273 Va. at 230, 639 S.E.2d
at 281; Hinchey v. Ogden, 226 Va. 234, 241, 307 S.E.2d 891, 895
(1983); Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452,
457, 117 S.E.2d 685, 689 (1961).
In this context, we consider whether the doctrine of
sovereign immunity bars a claim of retaliatory discharge brought
under the VFATA against the Commonwealth or a political
subdivision of the Commonwealth. We hold that it does.
Courts in Virginia generally do not recognize a common law
tort claim for retaliatory discharge. Dray v. New Market
Poultry Prods., Inc., 258 Va. 187, 191, 518 S.E.2d 312, 313
(1999); Miller v. SEVAMP, Inc., 234 Va. 462, 468, 362 S.E.2d
915, 918 (1987); but see Bowman v. State Bank of Keysville, 229
Va. 534, 539-40, 331 S.E.2d 797, 800-01 (1985) (applying narrow
exception to employment-at-will rule to hold that employees had
stated cause of action in tort against directors for retaliatory
discharge in violation of public policy). However, the General
Assembly has provided statutory causes of action for retaliatory
discharge in certain limited circumstances. In addition to the
“whistleblower protection” provision in the VFATA, the General
Assembly also has provided a statutory cause of action for
6
retaliatory discharge for any employee discharged for filing a
safety or health complaint, see Code §§ 40.1-51.2:1 and -51.2:2,
and for any employee who is fired for filing a workers’
compensation claim, see Code § 65.2-308. See Miller, 234 Va. at
468, 362 S.E.2d at 918-19.
The “whistleblower protection” provision in Code § 8.01-
216.8 provides a limited cause of action unknown at common law.
See Dray, 258 Va. at 191, 518 S.E.2d at 313; Miller, 234 Va. at
468, 362 S.E.2d at 918. The seventh paragraph of Code § 8.01-
216.8 states in relevant part:
Any employee who is discharged, . . . threatened, harassed,
or in any other manner discriminated against . . . by his
employer because he has opposed any practice referenced in
§ 8.01-216.3 or because he has initiated, . . . assisted,
or participated in any manner in any investigation . . .
under this article, shall be entitled to all relief
necessary to make the employee whole. Such relief shall
include reinstatement with the same seniority status such
employee would have had but for the discrimination, two
times the amount of back pay, interest on the back pay, and
compensation for any special damages sustained as a result
of the discrimination, including litigation costs and
reasonable attorneys’ fees.
In creating this cause of action, the General Assembly
chose the words “any employee” when identifying the class of
employees covered by the statute. See Code § 8.01-216.8. In
like manner, the General Assembly identified the “employer” of
“any employee” as the person or entity against whom suit may be
brought under the VFATA. Id. Notably, however, the General
Assembly did not define either the term “employer” or the term
7
“employee” in the VFATA. Therefore, because neither of these
terms contains an explicit reference to the Commonwealth and its
political subdivisions or to their employees, we must examine
the text of the VFATA to determine whether the General Assembly
explicitly and expressly announced a waiver of sovereign
immunity permitting the filing of retaliatory discharge actions
under Code § 8.01-216.8 by employees of the Commonwealth or its
political subdivisions.
We conclude that the General Assembly did not announce such
a waiver in the text of the VFATA. The only mention in the
VFATA of actions against the Commonwealth is made in the third
paragraph of Code § 8.01-216.8. That paragraph states, in
relevant part:
No court shall have jurisdiction over an action brought
under this article against any department, authority,
board, bureau, commission, or agency of the Commonwealth,
[or] any political subdivision of the Commonwealth . . . if
the action is based on evidence or information known to the
Commonwealth when the action was brought.
Code § 8.01-216.8.
This language is silent regarding the question whether
employees of the Commonwealth and its political subdivisions are
included in the term “[a]ny employee” in the seventh paragraph
of Code § 8.01-216.8. Although the above language in the third
paragraph indicates that the General Assembly contemplated that
the Commonwealth may be named as a defendant in some type of
8
legal action under the VFATA, nothing in that language, or any
other language in the VFATA, specifically states that employees
of the Commonwealth and its political subdivisions may sue their
employers for retaliatory discharge under the statute. Thus, we
conclude that the language in the third paragraph of Code
§ 8.01-216.8 does not contain an explicit waiver of sovereign
immunity allowing employees of the Commonwealth and its
political subdivisions to bring retaliatory discharge actions
under the VFATA.
Finally, we observe that we previously have rejected other
attempts to construe general statutory language as an
announcement waiving the Commonwealth’s sovereign immunity. See
e.g. Carter, 267 Va. at 245, 591 S.E.2d at 78 (Virginia Tort
Claims Act contained no express waiver of immunity for agencies
of Commonwealth); Beecher, 202 Va. at 457, 117 S.E.2d at 689
(statutory language stating that entity “may sue and be sued”
did not constitute explicit waiver of immunity). Our conclusion
that the VFATA does not contain an explicit and express waiver
of the Commonwealth’s sovereign immunity regarding retaliatory
discharge actions is consistent with our prior holdings, because
a waiver of sovereign immunity cannot be implied from general
statutory language. See Gray, 276 Va. at 102, 662 S.E.2d at 71;
Afzall, 273 Va. at 230, 639 S.E.2d at 281; Hinchey, 226 Va. at
241, 307 S.E.2d at 895; Beecher, 202 Va. at 457, 117 S.E.2d at
9
689. Accordingly, we hold that the circuit court did not err in
sustaining the County’s demurrer on the grounds of sovereign
immunity.
For these reasons, we will affirm the circuit court’s
judgment. 6
Affirmed.
6
Based on our holding, we need not consider Ligon’s
argument comparing the VFATA to the Federal False Claims Act, 31
U.S.C. §§ 3729-3733 (2006 & Supp. I 2007).
10